- (1.) In this case the plaintiff sued to obtain possession of a certain howla tenure, alleged to be situated in the talook of the zamindars, defendants, on the ground that they had been dispossessed of the said tenure by the two defendants who are now the special appellants before us. The said two defendants alleged that the lands in question were not howla lands at all, but were khas lands of the zamindar defendants which had been sold to them as such in the month of Falgun 1272. The issue between the parties was (and that issue has bean admitted on all sides to have been correct) whether the disputed howla, called Braja Mohan Pal's, appertained to the talook in question, and whether the plaintiff had been in possession thereof, and had been dispossessed, as alleged by the defendants. On this issue the first Court found against the plaintiffs, and dismissed their suit: the lower appellate Court reversed that decision, and gave the plaintiffs a decree for possession.
(2.) There are three grounds taken in special appeal before us. The first is to the effect that the lower appellate Court has passed its judgment on evidence improperly admitted by it, under the supposition that it was entitled to admit it by the provisions of section 355 of Act VIII of 1859. The second ground is, that the lower appellate Court is wrong in law in considering any secondary evidence of the title set up by the plaintiffs, until the loss of the original patta, plaintiffs' chief title-deed, had been accounted for to its satisfaction. The third ground is that the lower appellate Court has erred in not noticing a patta produced by a certain witness Durga Charan. This witness was, as we understand, a witness summoned by the defendants, and with reference to the evidence of all the witnesses for the defendants, the Court states that it cannot foe relied upon, and gives its reasons for making that statement. If therefore the Court could not rely on the witness, it clearly could not rely on any patta which that witness was cited to prove. We think therefore the last objection taken on special appeal may at once be disposed of.
(3.) On the first objection, we understand the argument of the learned Advocate-General to result in this: viz., that in taking the evidence of two persona, Kali Prasad Sen and Bhairab Chandra Das, the lower appellate Court has not acted under any sanction given under the provision of section 355, but that it has, in reality of its own motion, supplemented certain facts of the original case, which the plaintiffs attempted to prove in the first Court and to show that this was an error in law, the learned Advocate-General relies on a case, Jagabandhu Deb v. Golak Chandra Haldar 10 W.R. 228.;